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Pending Appeals to the House of Lords

In the Algerian and Jordanian cases, the House of Lords will need to determine whether the lower courts erred in evaluating whether the men would be at real risk of torture and ill-treatment on return.¹⁸

The international standard for making such an assessment is whether, at the time of transfer, a state knew or should have known that a person would be at real risk of such abuse. The European Court of Human Rights has ruled that as far as an applicant’s complaint under article 3 of the European Convention on Human Rights (ECHR) is concerned, the crucial question is whether there is a “real risk” that if expelled, a person would be subjected to torture or ill-treatment.¹⁹ If a person has not been deported or otherwise transferred, the material point in time must be the moment at which a court considers the case; if extradition has already been effected, “the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the extradition.”²⁰

By this standard, for a court considering whether a transfer may go ahead, it will be necessary to take account of evidence that has come to light since any prior review. Thus, new evidence of continuing torture with impunity would have to be considered before any decision to deport could be made.

The Algerian cases

The first set of cases to be heard on appeal to the House of Lords on October 22-23, 2008, involves a July 2007 judgment of the Court of Appeal. In that case, the Court of Appeal upheld a previous ruling by the SIAC that two Algerians could be deported to Algeria in reliance on diplomatic assurances against torture and ill-treatment from the authorities in Algiers.²¹

As noted above, the test for assessing a deportation’s compliance with article 3 of the European Convention requires an evaluation of the personal risk a person would face given conditions in the home country at the time of transfer. Recent UN reports are unequivocal in their condemnation of Algeria for torture and ill-treatment of persons held in security detention, the lack of investigation of alleged abuses, and the general impunity enjoyed by those perpetrating the violations.

In May 2008, in its review of Algeria, the UN Committee Against Torture listed several areas of concern. It referred to the extension of the official state of emergency, first declared in 1992; reports of secret detention centers, outside any judicial control, operated by the Algerian Department for Information and Security (DRS) and not subject to investigation by the authorities; numerous cases of torture and ill-treatment reportedly at the hands of the DRS; and the lack of prompt and impartial investigations into allegations of such abuse.²² The UN Human Rights Committee had issued a similar report in December 2007. It expressed concern that human rights abuses were committed by Algerian public officials with “complete impunity”; requested action on reports of secret detention centers operated by the DRS; called on the Algerian authorities to investigate reports of torture by DRS operatives; and noted that, under Algerian law, confessions extracted under torture are not explicitly prohibited and excluded as evidence.²³

Such reports echo evidence that was available to the SIAC at the time of its original ruling in April 2007. In a hearing before the SIAC, the British government acknowledged the existence of torture in Algeria, the lack of civilian control over the DRS, and the fact that it “had never seen any report of any prosecution of a DRS official for torture or ill-treatment.”²⁴ The SIAC found the Algerian assurances to be reliable, however, based on the trend in Algeria toward civilian control, the promised loosening of military power, and the fact that President Bouteflika’s position is not subordinate to the military.²⁵ The SIAC noted that the DRS reports directly to the president, apparently not considering that such an admission makes Bouteflika himself responsible for the torture and ill-treatment documented as occurring within DRS custody and the absence of accountability for such abuses.²⁶

The Court of Appeal pointed out, “If a country is disrespectful of international norms and obligations, it is likely to be no less disrespectful of its obligations under a lower-level instrument such as a diplomatic note.” ²⁷ Inexplicably, however, the court went on to uphold the SIAC’s findings.

Algeria’s treatment of recent returnees raises additional concerns. Indeed, the Bouteflika government has already breached promises it made regarding the treatment on return of two Algerian nationals deported from the United Kingdom in January 2007. These promises were made by Algerian officials directly to the affected men, but the British government had facilitated contacts between the officials and the men.²⁸ While not formal “diplomatic assurances” brokered between governments, these promises—which were breached to devastating effect for the men, Benaissa Taleb and Rida Dendani—are a window on the Algerian government’s absence of good faith and the abuses returnees suffer on return.

Frustrated by the long process of appealing their deportations, national security suspects Taleb and Dendani decided to return “voluntarily” to Algeria last year. Their decision was reportedly based in part on promises from the Algerian authorities that the February 2006 amnesty (see previous section) would apply to them; that they would not be tried for any offense; that they would be detained for only a short period on return; and that they would not be held in DRS custody.²⁹

On return, however, the men were detained in DRS custody for 12 days, interrogated, and reportedly threatened and beaten. Both were later charged, tried, and convicted of involvement in a terrorist network operating outside of Algeria. Statements reportedly extracted using coercive interrogation techniques during their initial period of detention were used as evidence against them at trial. Taleb was sentenced to three years’ imprisonment and Dendani to eight years.³⁰

There are also concerns about the treatment of four former Guantanamo Bay detainees who were recently repatriated to Algeria. Abderrahmane Houari (also known as Sofiane Hadarbache) and Mustafa Ahmed Hamlily were transferred from Guantanamo to Algiers on July 2, 2008. They were the first Algerian detainees to be repatriated after years of negotiations between the US and Algerian governments. Upon arrival, both men were detained incommunicado for nearly two weeks without access to family members or their lawyers.³¹ They have since been charged with membership in a terrorist organization abroad and using forged travel documents. Both men were granted bail pending court appearances.

In August 2008 two other Algerians were transferred from Guantanamo to Algerian custody. For the first two weeks on return, there was no information available regarding their whereabouts or status.³²  They are both out on bail now pending trial on charges for membership in a terrorist organization operating abroad and using forged travel documents.     

According to the US State Department and Department of Defense, it is the policy of the United States not to send any Guantanamo Bay detainee to a place where it is more likely than not that the detainee would be tortured upon return. In cases where there is a risk of torture, the government seeks and secures diplomatic assurances against such treatment.³³ In September 2008 Human Rights Watch urged US Secretary of State Condoleezza Rice to press President Bouteflika on the fate of the returned Guantanamo detainees.³⁴ Rice acknowledged after a meeting with Bouteflika in Algiers on September 6 that the issue of Guantanamo was discussed, but gave no indication that she sought specific information on the treatment, whereabouts, or status of the returnees, or that she asked for or received access to meet the men or their families.³⁵

The case of Abu Qatada

The second case on appeal to the Lords, to be heard October 28-29, 2008, involves Omar Othman, a.k.a. Abu Qatada. A recognized refugee and radical Muslim cleric accused of ties with al-Qaeda, Othman is threatened with deportation to Jordan in reliance on promises from Amman of humane treatment and fair trial.

The Court of Appeals, overturning the prior SIAC ruling in this case,³⁶ barred Othman’s removal based on its finding that if he were prosecuted in Jordan—a likely outcome given Jordanian interest in him—evidence extracted by the torture of suspects in GID custody would almost certainly be admitted into evidence.³⁷ The court ruled that the admission of such testimony would be a “flagrant denial of justice” in violation of the ban on the use of torture evidence in criminal proceedings.³⁸ The ruling was artfully crafted, essentially rejecting Jordanian promises of a fair trial, due to the likely admission of torture evidence, but avoiding a full assessment of the reliability of the specific UK-Jordanian MOU in question.

Human Rights Watch has documented the severe abuses suffered by persons held by the GID, which has a long record of torture and of obstructing the access of ICRC representatives.³⁹ The GID, whose law enforcement powers are not explicitly set out in law, continues to operate outside the normal prison supervision mechanisms in Jordan. The GID prison regime includes long periods of isolation, raising concerns about prisoners’ health and treatment and due process rights. GID detainees do not have the right to make telephone calls to inform relatives or their embassies of their whereabouts and any charges against them. Detainees are often held incommunicado for weeks, thus having no contact with lawyers or family members, before they are permitted to have weekly supervised visits. Furthermore, the GID keeps all detainees in solitary confinement, often lasting months, while interrogators conduct their investigation.⁴⁰ Such prolonged solitary confinement can often constitute prohibited ill-treatment.⁴¹

In 2006, after carrying out a visit to Jordan, the UN special rapporteur on torture issued a report concluding, “The practice of torture is widespread in Jordan, and in some places routine, [including] the General Intelligence Directorate (GID).” Although the special rapporteur was denied access to interview prisoners held in GID detention in Amman, he cited credible and consistent allegations that torture was used at GID headquarters “to extract confessions and obtain intelligence in pursuit of counter-terrorism and national security objectives.”⁴²

The UK Court of Appeal thus was correct to express concern that the practice of torture in GID custody could lead to the admission into evidence of statements or confessions extracted under profoundly coercive circumstances. However, it is unclear how the Court could fail to link those findings to an analysis of the broader deficiencies with the UK-Jordanian MOU. The SIAC had acknowledged that Othman would be taken into GID custody upon return and interrogated, possibly even under “indirect” questioning by the US government at some point.⁴³ The panel also accepted that the GID system was rife with physical abuse, procedural irregularities, and impunity for those who perpetrated abuses.⁴⁴ Relying on Othman’s “high profile,” however, the SIAC ruled that due to the intense scrutiny of his treatment by persons sympathetic to him in Jordan, and by the local and international media, the Jordanians would comply with the terms of the MOU.⁴⁵ According to the SIAC, any abuse of Othman would cause a considerable outcry in Jordan, inflaming his sympathizers and possibly destabilizing the country. Thus, instructions that he be treated properly would be followed and any risk of ill-treatment avoided.⁴⁶

This simplistic reliance on Othman’s high profile as an added safeguard ignores the more sophisticated analysis of the deficiencies of post-return monitoring, the relative weakness of local monitoring groups (which conduct the monitoring under the MOUs) vis-à-vis the State, the lack of incentive on the part of either the sending or receiving government to acknowledge a breach of the assurances, and the possible fear of reprisal that Othman himself might have in complaining about abuse.

The SIAC reiterated these arguments in the body of the decision, liberally referencing criticisms of diplomatic assurances made by international human rights experts and nongovernmental organizations, including Human Rights Watch. Yet the court utterly failed to address such criticisms in a meaningful way.⁴⁷ Moreover, the SIAC ignored the European Court of Human Rights finding in the Chahal decision that Chahal’s high profile left him more vulnerable to torture and ill-treatment, not less so (see below).